Concept and Definition of the Accessory Legal Complaint
Die Accessory Legal Complaint is a specific legal remedy in the German legal system, which is particularly applied in civil appellate complaint proceedings. It enables a party to join a legal remedy initiated by another party—generally a legal complaint—even if that party has not filed an independent legal complaint itself or has missed the opportunity to do so. The accessory legal complaint is legally regulated, inter alia, in Section 74b (2) of the Act on Non-Contentious Matters (FGG) and Section 573 (1), Sentence 2 of the former Code of Civil Procedure (ZPO), and is now predominantly used in non-contentious proceedings and family court proceedings (under the FamFG).
Legal Basis
Code of Civil Procedure (ZPO) and Its Development
The possibility of the accessory legal complaint is closely linked to the development of the ZPO and the regulations on the legal complaint. While the classic ZPO did not explicitly regulate the accessory complaint in the strict sense, corresponding provisions are found especially in the context of the legal complaint as well as in the pre-court law of non-contentious jurisdiction.
Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG)
Following the entry into force of the FamFG on 1 September 2009, the relevant provisions on the accessory legal complaint are largely found in this statute. In particular, Section 74b (2) FamFG (formerly Section 29a FGG) expressly stipulates the admissibility of the accessory legal complaint in complaint proceedings.
Other Special Laws
Comparable provisions that allow the accessory legal complaint are also provided for in certain specialized statutes, such as the Social Court Act (SGG) and the Act on Proceedings in Matters before the Federal Patent Court (BPatG).
Requirements and Admissibility of the Accessory Legal Complaint
Legal Standing and Grievance
Only a party involved and aggrieved in the original or appellate complaint proceeding is entitled to file an accessory legal complaint. The remaining prerequisites for admissibility, such as observance of deadlines and compliance with form requirements, are generally governed by the provisions applicable to the principal legal complaint.
Time Limit and Form
The accessory legal complaint—similar to the accessory appeal in two-tiered appellate systems—may be filed until the expiry of the deadline for responding to the legal complaint, or if no response deadline exists, until the end of the oral hearing. It must be filed in the statutory form, usually in writing or recorded at court. A statement of grounds is also required for the accessory legal complaint, insofar as the main legal remedy demands it.
Dependence on the Main Legal Remedy
A key characteristic of the accessory legal complaint is its accessory nature: the proceeding is tied to the fate of the main legal remedy and can only subsist as long as the principal complaint is maintained. If the legal complaint is withdrawn or declared inadmissible, the accessory legal complaint also ceases.
Effects and Legal Consequences of the Accessory Legal Complaint
Scope and Extent
Through the accessory legal complaint, parties can pursue the proceeding to the extent opened by the principal complaint. The joined complaint may generally not exceed the scope of review of the main legal remedy; any extension is inadmissible. However, within the permissible scope, the accessory legal complaint can also be used for counter-interests, for example, challenging aspects not affected by the main legal complaint.
Independent Effect and Dependence
Although the accessory legal complaint is procedurally tied to the main legal remedy, it nonetheless has independent effect within its permitted scope of application: It will be objectively decided upon and, if all requirements are met, ruled upon independently of the principal legal complaint.
Withdrawal and Termination of Proceedings
If the main legal remedy is withdrawn, the accessory legal complaint is also automatically disposed of. However, an isolated withdrawal of the accessory legal complaint is possible, provided the main legal remedy is continued.
Distinction from Other Legal Remedies
Difference from an Independent Complaint
The independent complaint is not linked to the main legal remedy and can be filed without reference to another legal remedy. In contrast, the accessory legal complaint is always accessory and depends for its existence on the main legal remedy.
Difference from the Accessory Appeal and Accessory Revision
In the classic appellate system, the accessory appeal (§ 524 ZPO) is the counterpart to the accessory legal complaint in complaint proceedings. The specifics and legal consequences are comparable, although the accessory legal complaint is limited to complaint proceedings (in the broader sense) and the legal complaint instance, while the accessory appeal concerns the appellate instance. An accessory revision is generally not provided for under German civil procedural law.
Significance in Practice
Areas of Application
The accessory legal complaint is especially applied in guardianship and family court proceedings as well as probate and register matters. In practice, it gains importance where several parties with divergent interests appear, and time limits for an independent legal complaint have lapsed or for tactical reasons no complaint was initially filed.
Legal Policy Classification
The option of filing an accessory legal complaint strengthens the legal protection of participants and enhances procedural efficiency by avoiding parallel legal proceedings. It enables a comprehensive review of the first-instance decision in the interest of all parties involved, without requiring each party to independently file an appeal.
Literature and Case Law
Extensive specialized literature is consulted for an in-depth examination of the accessory legal complaint, such as commentaries on the FamFG and FGG. Higher court rulings, for example from the Federal Court of Justice, have also clarified the rights and limits of the accessory legal complaint and further defined the requirements for its admissibility.
Summary
Die Accessory Legal Complaint constitutes a central instrument in appellate proceedings under civil procedure law. It allows parties to flexibly and procedurally efficiently join an existing appellate remedy. In its practical application, it helps ensure comprehensive legal protection and allows final court decisions to be made considering the interests of all parties. However, the legal requirements and effects of the accessory legal complaint are subject to strict statutory provisions, so precise knowledge of the relevant provisions and their application in dispute is essential.
Frequently Asked Questions
How does the accessory legal complaint differ from an ordinary legal complaint?
The accessory legal complaint is to be distinguished from the ordinary legal complaint, especially in terms of its function and requirements for admissibility. While the legal complaint is an independent legal remedy against certain judicial decisions and is filed by an entitled party before a specifically designated appellate court, the accessory legal complaint only acts in addition to a previously filed (principal) legal complaint. The accessory legal complaint may only be filed by a party who would also be entitled to bring an independent legal complaint, but has not done so thus far. It is, therefore, accessory and requires that a (principal) legal complaint has first been filed. The purpose of the accessory legal complaint is to introduce one’s own, possibly divergent or additional objectives into the proceeding, without having to observe a separate appeal period; rather, the response to the initially filed legal complaint is decisive. However, the accessory legal complaint only produces effects as long as the principal legal complaint persists; should it be withdrawn or dismissed, the accessory legal complaint also becomes moot.
Who is entitled to file an accessory legal complaint?
As a rule, all parties to the underlying proceedings who would in the specific case be entitled to lodge a complaint—and thus could have filed an independent legal complaint—are entitled to file the accessory legal complaint. Furthermore, the requirement is that they have not filed an independent legal complaint within their time limit. The party who has lodged the main legal complaint is accordingly excluded from joining their own legal remedy. In contrast to a direct legal complaint, the admissibility of the accessory legal complaint requires, in particular, that it relates to the same subject matter as the principal legal complaint. Third parties, such as interveners who were entitled to file a complaint in the original proceedings, may also use this legal remedy under the conditions stated above.
What formal and substantive requirements apply to the accessory legal complaint?
The accessory legal complaint is subject to strict formal and substantive requirements. Formally, it must be filed by a licensed Rechtsanwalt (if legal representation is required) with the competent legal complaint court within the time limit for the accessory legal complaint—generally no later than one month after service of the statement of grounds for the main legal complaint. It must clearly be designated as an accessory legal complaint, containing specific motions and a detailed statement of grounds, setting out the alleged legal errors unequivocally. In terms of content, it is required that the accessory legal complaint relates to the same subject matter as the main legal complaint, and does not aim at independent legal issues separate from the principal complaint. Substantively, admissibility further depends on the applicant’s proper participation in the prior proceedings, and that no non-compliance with response deadlines has occurred.
What time limits must be observed when filing an accessory legal complaint?
A special deadline applies to the accessory legal complaint: it must be filed with the competent legal complaint court within one month after service of the statement of grounds of the principal legal complaint. This period starts from the moment the party becomes aware of the principal legal complaint and its statement of grounds. Failure to comply with this deadline renders the accessory legal complaint inadmissible, even if the person filing would have originally been entitled to bring an independent legal complaint. Any state- or procedure-specific peculiarities (such as diverging provisions in special statutes or articles of association) must be observed separately.
What happens to the accessory legal complaint if the main legal complaint is withdrawn or dismissed?
A key feature of the accessory legal complaint arises from its accessory nature: if the main legal complaint is withdrawn or dismissed as inadmissible for any other reason, the accessory legal complaint automatically lapses. It cannot subsist independently because, from a systematic legal perspective, it is merely an adjunct to the existing (and continuing) main legal remedy. The accessory legal complaint thus shares the fate of the principal complaint, which means that the joint applicants lose their legal protection if the main proceeding ends prematurely. There is generally no special follow-up process for the parties entitled to join.
Are there differences between the various branches of jurisdiction with regard to the accessory legal complaint?
Depending on the jurisdiction—such as civil, family, labor, or administrative courts—there may be relevant differences in the structure and, in particular, the admissibility and applicability of the accessory legal complaint. In civil procedural law, for example, the accessory legal complaint is explicitly regulated in Section 574 ZPO and is permitted for certain complaint decisions, while in administrative procedure under Section 133 of the VwGO or in other rules of procedure, there may be different provisions and applications. It must therefore always be examined which specific rules of the relevant procedure apply and whether the legal remedy is expressly permitted or even excluded. Relevant commentaries and current higher court case law should be consulted in case of doubt.
